NEW JERSEY TROOPERS AGAIN FACE CHARGES IN TURNPIKE SHOOTING

TRENTON, Jan. 5 -- A New Jersey appeals court reinstated criminal charges
today against two state troopers who shot and wounded three unarmed black
and Hispanic men in a van on the New Jersey Turnpike in 1998, the incident
that made racial profiling a national issue.

In a unanimous opinion, a three-judge panel of the Appellate Division of
Superior Court ruled that a lower court judge erred when he threw out an
indictment of the troopers, James Kenna and John Hogan, on Oct. 31.

Mr. Kenna's lawyer said tonight that he was unlikely to appeal to the New
Jersey Supreme Court, meaning that if Mr. Hogan also forgoes an appeal,
their case could proceed to trial by late spring or summer. Both troopers
are charged with aggravated assault; Mr. Kenna is accused of attempted murder.

The ruling was a victory not only for the shooting victims and for civil
rights advocates, who hailed the decision, but also for Gov. Christie
Whitman's outgoing administration, for New Jersey Republicans generally,
and in particular for Peter G. Verniero, who was Mrs. Whitman's attorney
general when several crucial decisions in the case were made and was later
named to the State Supreme Court.

The lower court judge, Andrew J. Smithson of State Superior Court in
Trenton, had dismissed the indictment on several grounds but directed his
most pointed criticism at Mr. Verniero.

Judge Smithson found that "powerful and intimidating forces" had compelled
prosecutors to announce the indictment of the troopers on separate charges
of falsifying records at the same time that the second grand jury was
deliberating in the shooting case and the Legislature was considering Mr.
Verniero's court appointment.

Judge Smithson called the timing of the announcement "a matter of political
expediency," and suggested it was meant to quiet a "frenzy of public
interest in racial profiling."

But in a strongly worded rebuke of Judge Smithson, the appellate judges
today called his comments "unfounded and unfair," adding that they were
"aware of no constitutional or jurisprudential doctrine that grants the
judiciary a roving commission to oversee the conduct of the attorney
general's investigations of possible criminal acts."

The judges went on to deliver a lengthy defense of the attorney general's
office and a vindication, in effect, for Mr. Verniero.

"We cannot fault the attorney general's office for mounting a timely
investigation and obtaining an indictment when faced with evidence that
defendants might have violated the law," the judges wrote. "There is no
evidence in the record to support the judge's charge that release of the
intervening indictment was calculated to deny, or had the effect of
denying, the defendants' rights."

Lawyers for both troopers said that they were disappointed by the court's
ruling and that they wanted to study it further before deciding whether to
appeal, although Mr. Kenna's lawyer, Jack Arsenault, said tonight that he
thought an appeal was unlikely.

Philip De Vencentes, a lawyer for Mr. Hogan, said, "I would have thought
that the court would have seen it in the same way that the trial judge saw it."

The shooting took place on April 23, 1998, when four New York men were
driving south on the Turnpike on their way to a basketball clinic in North
Carolina. The troopers said they pulled over the van for speeding. Moments
later, they said, the van lurched backward toward Mr. Hogan. Fearing for
his life, the troopers said, they began shooting, firing 11 shots into the
van. Three of the four men in the van were wounded and treated at hospitals.

Until then, state police had denied the existence of racial profiling. But
the shooting ignited such a public outcry that Governor Whitman ordered her
own investigation of the force in February 1999. Two months later, she
became the first state official in New Jersey history to acknowledge
discrimination by troopers, and she vowed to overhaul the state police. In
September 1999, a state grand jury indicted the two troopers.

In today's 44-page ruling, the three appellate judges, all of them
registered Democrats -- Philip S. Carchman, John E. Wallace Jr. and David
S. Baime, who wrote it -- methodically dismantled each of the reasons Judge
Smithson had given for dismissing the indictment. And in so doing, they at
times appeared to make new and important state law.

For example, Judge Smithson had ruled that the state was legally obligated
to explain to the grand jurors that police officers are allowed to fire
their handguns in self-defense when they feel their lives are in jeopardy.
But the appellate judges reached across the border to adopt a New York
legal standard that requires prosecutors to inform a grand jury of a
possible defense only when it could result in "a complete exoneration," as
opposed to a merely mitigating defense.

Even so, the appellate judges wrote that the New York rule "poses too great
a burden on the prosecutor," saying New Jersey prosecutors should not be
expected to "sift through the entire record of investigative files to see
if some combination of facts and inferences might rationally sustain a
defense or justification." The judges then effectively made New Jersey
prosecutors' lives much easier: "As long as the instruction conveys to the
grand jury the gist of the exonerating defense or justification," they
wrote, "the prosecutor's duty is met."

Turning to the specifics of the Hogan and Kenna case, although the judges
said the attorney general's office had made several errors in its grand
jury presentation -- by failing to explain the self-defense rule for police
officers, for example -- they wrote that none of those mistakes were so
grave "that the grand jury would have reached a different result but for
the prosecutor's error."

The appellate judges also rebutted Judge Smithson's finding that
prosecutors' zeal had made them overly adversarial toward the troopers
while presenting evidence to the grand jury, turning the proceeding into
what he likened to "a mini-trial." They said Judge Smithson had
misconstrued the law and "misconceived the power of the grand jury to
receive evidence."

Attorney General John J. Farmer Jr., who succeeded Mr. Verniero and
appealed the dismissal of the indictments, said in a statement that the
court ruling "underscores that state prosecutors presented the evidence
fully and fairly to the grand jury."

"Ultimately, the panel correctly observed that every consideration was
taken to ensure the rights of the defendants and to follow both the letter
and the spirit of the law," he said. "In fairness to all parties and to
bring this case to a just end, we intend to pursue this prosecution as
expeditiously as possible."

Civil rights leaders also praised the decision, among them the Rev.
Reginald T. Jackson, the executive director of the Black Ministers' Council
of New Jersey and a leading opponent of racial profiling.

"The ministers' council is very pleased at the appeals court decision, and
we hope now that we can set a date for the trial, and that this case can be
brought to a just conclusion," Mr. Jackson said. "It has now been almost
three years since the 1998 shooting, and it is important that these
defendants get a fair trial and that justice be served."

A hearing in the criminal case against Mr. Hogan and Mr. Kenna has been
scheduled for Jan. 22. A parallel investigation by the United States
Justice Department, into whether to prosecute the troopers on civil rights
charges, is continuing.

Peter Neufeld, a lawyer for two of the shooting victims, Danny Reyes and
Leroy Jermaine Grant, said tonight that he had told them both of the
decision "and they were both extremely gratified by it."

"Danny said that he was looking forward to his day in court, where he can
publicly testify about what these two officers did to him," Mr. Neufeld
said. "And Jermaine said, and these are Jermaine's words, `The snow is
beginning to melt a lot faster.' "